supplied, by the relations of the poor persons, from the time of such application. The facts are to be ascertained by the court. The provision is prospective only. It regards no supplies already furnished, or expenses already incurred; and the liability, the legal obligation, is precisely as extensive as the law establishes it, and no greater. By this statute, then, for these reasons, the legal obligation alleged in support of this contract does not appear. That such is the construction of this statute, I cite the opinion of the Supreme Court of Massachusetts in Mills v. Wyman (3 Pick. Rep. 207, 212) as to a similar statute of that State; and especially I rely on the decision of this court in Wethersfield v. Montague et al., 3 Conn. Rep. 507. One of the points settled in that case was, that "no assessment could be made, by virtue of this statute, for past expenditures, the provisions of the statute being exclusively prospective." The principle then is, that there is no legal obligation to pay past expenditures; which exonerates the son in this case from all legal liability for the expenditures for the father.

4. This opens to us the only remaining point. The counsel for the defendant in error urge, that the son was under a moral obligation to support the father, that this is a 'sufficient consideration to uphold the promise, and that, therefore, the son is liable.

It cannot be successfully contended, that in every case where a person is under a moral obligation to do an act, as, to relieve one in distress by personal exertions, or the expenditure of money, a promise to that effect would be binding in a court of law. Such an idea is unsupported by principle or precedent. It is a just rule of morality, that a man should do towards others what he might reasonably expect from others in like circumstances. This rule is sanctioned by the highest authority, and is very comprehensive. An affectionate father, brother, or sister has taken by the hand the youngest son of the family, given him an education, and placed him in a situation to become, and he has become, affluent. The father, brother, or sister, by the visitation of Providence, has become poor, and impotent, and houseless. The son, rolling in riches, in the overflowings of his gratitude for kindness experienced, contracts in writing to discharge some

portion of the debt of gratitude, by giving to his destitute relative some one of his numerous houses for a shelter, and a thousand of his many thousand dollars for his subsistence; can such a promise be enforced in any judicial tribunal? Municipal laws will not decide what honor or gratitude ought to induce the son to do in such a case, as Dr. Blackstone remarks (2 Bla. Com. 445), but it must be left to the forum of conscience.

It cannot be denied that many distinguished judges have laid down the principle that moral obligation is alone a sufficient consideration to support a contract. Thus did Lord Mansfield, in Cowper, 288, 544. He was followed by Mr. Justice Buller, by Lord Ellenborough, and other judges in other cases. But it is an obvious remark, that the cases cited in illustration of those positions were all cases where a prior legal obligation had existed, but by reason of some statute, or stubborn rule of law, it could not be enforced: as a promise to pay a debt barred by bankruptcy, or the statute of limitations, or a promise by an adult to pay a debt contracted during minority. In all these instances a good consideration existed, for each had received a benefit.

All the cases on this subject are carefully, and with just discrimination, revised in a note in 3 Bos. & Pull. 249, and the true distinctions taken. The law of this note has been recently adopted in the Supreme Court of New York in the cases of Smith v. Ware (13 Johns. Rep. 257, 289) and Edwards et ux. v. Davis (16 Johns. Rep. 281, 283 n.), and in a still later case (in the year 1826) in Massachusetts, viz., Mills v. Wyman (3 Pick. Rep. 207) a case referred to above for another purpose. No stronger case of moral obligation can be found. "A son who was of full age and had ceased to be a member of his father's family was suddenly taken sick among strangers, and being poor and in distress, was relieved by the plaintiff, and afterwards the father wrote to the plaintiff, promising to pay him the expenses incurred; it was held that such promise would not sustain an action." I am well satisfied with the very able and sound reasoning of the court delivered by Chief Justice Parker on that occasion.

I will now advert to the particular decisions of the English courts cited at the bar and relied on. Watson v. Turner, Bull.

Nisi Prius, 147. It is no longer doubted that the defendants in that case, the overseers of the poor, were under a legal obligation to furnish the support for which the promise was made. It is a case, therefore, within the rule in 3 Bos & Pull. 249 n. The case of Scott v. Nelson, cited Esp. Dig. 95, and an anonymous case in 2 Shower, 184, seem to imply that a father was holden liable on a promise to pay for supplies for his bastard child; but in my opinion, it may be safely inferred from the facts that the supplies were furnished on request, which would make a material difference. In Wing v. Mill (1 Barn. & Ald. 104) the whole court. held that a legal and moral obligation existed. In the case of Barnes v. Hedley & Conway (2 Taunt. 184) the court held, that when the parties to usurious securities stripped them of all usury, and the securities were given up and cancelled, by agreement of the parties, and the borrower of the money promised in consideration of having received the principal, to pay the same with legal interest, the promise was binding. This case rests upon the same principles which were recognized by this court in the case of Kilborun v. Bradley (3 Day 356), where the court decided that if a usurious security be given up, and a new security be taken for the principal sum due and legal interest, the latter security will be good. This bears not at all upon the case under consideration. The money advanced was a good consideration of the promise to repay it, the usury being expunged. In the case of Lee v. Muggeridge et al., executors of Mary Muggeridge, deceased (5 Taunt. 36), it was held that a feme covert, having given a bond for money advanced to her son-in-law, at her request, was bound by a promise made by her after she became discovert. Mary, the obligor in that case, had a large estate settled to her separate use. In this condition she executed a bond for money advanced to her son-in-law, at her request. After the death of the husband, and while single, she wrote a letter promising to pay the amount thus advanced. The court, in giving their opinion, say this is a promise founded on a moral obligation, and that it is a good consideration. I should say the promise was founded on the advancement of the money, at her request, to her son-in-law, and as she was incapacitated to bind herself, by reason of the coverture, when she received the benefit, and is therefore protected

from liability by a stubborn rule of law, yet if when this rule of law ceases to operate upon her, she will promise to pay, it will bind her.

On the whole, I am not satisfied that a case can be found in the English books in which it has been held that a moral obligation is a sufficient consideration for an express promise, though there are many to the contrary, but that it is limited in its application to the cases where a good and valuable consideration has once existed, as laid down by the Supreme Court in Massachusetts, once and again adverted to.

I am therefore of opinion that there is error in the decree complained of, and that the judgment be reversed.

HOSMER, C. J., was of the same opinion.

PETERS and LANMAN, JJ., dissented.

BRAINARD, J., was absent.

Judgment reversed.

(ii) Consideration need not be adequate to the promise, but must be of some value in the eye of the law.

SCHNELL v. NELL.

17 INDIANA, 29, -1861.

Appeal from the Marion Common Pleas.

PERKINS, J. Action by J. B. Nell against Zacharias Schnell upon the following instrument:

"This agreement entered into this 13th day of February, 1856, between Zach. Schnell, of Indianapolis, Marion County, State of Indiana, as party of the first part, and J. B. Nell, of the same place, Wendelin Lorenz, of Stilesville, Hendricks County, State of Indiana, and Donata Lorenz, of Frickinger, Grand Duchy of Baden, Germany, as parties of the second part, witnesseth: The said Zacharias Schnell agrees as follows: whereas his wife, Theresa Schnell, now deceased, has made a last will and testament, in which, among other provisions, it was ordained that every one of the above named second parties should receive the sum of $200; and whereas the said provisions of the will must remain a nullity, for the reason that no property, real or personal, was in the possession of the said Theresa Schnell, deceased, in her own name, at the time of her death, and all property held by Zacharias and Theresa Schnell jointly therefore reverts

to her husband; and whereas the said Theresa Schnell has also been a dutiful and loving wife to the said Zach. Schnell, and has materially aided him in the acquisition of all property, real and personal, now possessed by him; for, and in consideration of all this, and the love and respect he bears to his wife; and, furthermore, in consideration of one cent, received by him of the second parties, he, the said Zach. Schnell, agrees to pay the above named sums of money to the parties of the second part, to wit: $200 to the said J. B. Nell, $200 to the said Wendelin Lorenz, and $200 to the said Donata Lorenz, in the following instalments, viz.: $200 in one year from the date of these presents; $200 in two years, and $200 in three years; to be divided between the parties in equal portions of $663 each year, or as they may agree, till each one has received his full sum of $200. "And the said parties of the second part, for, and in consideration of this, agree to pay the above named sum of money (one cent), and to deliver up to said Schnell, and abstain from collecting any real or supposed claims upon him or his estate, arising from the said last will and testament of the said Theresa Schnell, deceased.

"In witness whereof, the said parties have, on this 13th day of February, 1856, set hereunto their hands and seals.

The complaint contained no averment of a consideration for the instrument outside of those expressed in it; and did not aver that the one cent agreed to be paid had been paid or tendered.

A demurrer to the complaint was overruled.

The defendant answered, that the instrument sued on was given for no consideration whatever.

He further answered, that it was given for no consideration, because his said wife, Theresa, at the time she made the will mentioned, and at the time of her death, owned, neither separately, nor jointly with her husband or any one else (except so far as the law gave her an interest in her husband's property), any property, real or personal, etc.

The will is copied into the record, but need not be into this opinion.

The court sustained a demurrer to these answers, evidently on the ground that they were regarded as contradicting the instrument sued on, which particularly set out the considerations upon which it was executed. But the instrument is latently ambiguous on this point. See Ind. Dig., p. 110.