For the foregoing reasons we are all of opinion that the nonsuit directed by the Court of Common Pleas was right, and that judgment be entered thereon for costs for the defendant.1 (a) Consideration moved by previous request. HICKS v. BURHANS. 10 JOHNSON (N. Y.), 242. — 1813. In error, on certiorari, from a justice's court. B. and others brought an action of assumpsit against Hicks, before the justice. The cause was tried by a jury. The plaintiffs gave in evidence a writing dated the 16th of January, 1808, signed by the defendant and ten others, reciting that whereas the plaintiffs had, previous to the date of the writing, been in pursuit of several persons who had absconded and were in debt to the subscribers, they, the subscribers, promised to pay to the plaintiffs, or either of them, an equal proportion of all the expenses which the plaintiffs had been at, in pursuing such fugitive debtors, and also promised to pay their equal proportion of all further expenses the plaintiffs should be at in further pursuing the said persons, etc. The plaintiffs proved an account of the expenses, amounting to about one hundred and thirty-eight dollars; and that the defendant examined the account when presented to the creditors, and made no objection to it, except to a charge of twenty dollars. The jury gave a verdict for the plaintiffs for seventeen dollars, on which the justice gave judgment. Per Curiam. The written promise to pay, if founded on a past consideration, may be good, if the past service be laid to have been done on request; and if not so laid, a request may 1 "We do not believe a case can be found where a moral obligation alone has been held to be a sufficient consideration for a subsequent promise.". Allen v. Bryson, 67 Ia. 591. - "This court has never, when called upon, hesitated to say that a moral obligation is a sufficient consideration to support a promise to pay." Mutual &c. Ass'n v. Hurst, 78 Md. -; 26 Atl. R. 956. See also Gray v. Hamil, 82 Ga. 375. be implied from the beneficial nature of the consideration, and the circumstances of the transaction. 1 Caines' Rep. 585, 586. Here the past service consisted in an expensive pursuit, by the plaintiffs, of certain fugitive debtors, who were indebted to the defendant and others; and it appeared that the plaintiffs had exhibited their accounts, at a meeting of the creditors, and that the defendant examined them, and made no objection, except to a single item of the charges. A request, in this case, might have been implied; and we ought to intend it to have been proved upon trial. There are no formal pleadings in the case, and the return does not negative the fact of a request. There was no other objection raised that merits notice. The judgment must be affirmed. Judgment affirmed. (B) Voluntarily doing what another was legally bound to do. GLEASON v. DYKE. 22 PICKERING (MASS.), 390.- 1839. In 1833 defendant gave a note to the Massachusetts Hospital Life Insurance Co., and a mortgage was given by him to secure the payment of the note. November 11, 1837, the defendant's equity of redemption was sold on execution to plaintiff, who on the 24th paid to the Insurance Co. the amount due on the note. The mortgage and note, both cancelled, and with a release indorsed upon the mortgage, were delivered up to the plaintiff by the company. Some days after the execution of the release, the defendant examined the note and mortgage for the purpose of ascertaining the amount due to the plaintiff, and promised the plaintiff to pay the same. WILDE, J. There was no express proof that the note to the Massachusetts Hospital Life Insurance Company was paid at the request of the defendant; but the plaintiff relied on the promise of the defendant to pay him, made subsequently to the discharge of the mortgage. This promise, we think, is equivalent to a previous request. It comes within the well-established principle, that the subsequent ratification of an act done by a voluntary agent of another, without authority from him, is equivalent to a previous authority. The law, it is true, will not allow a party to maintain an action for money paid to discharge the debt of another without his consent; for to allow this, would subject every debtor to the power of those who might be disposed to injure him, and who might harass him with suits, and burden him with costs, in the most unreasonable and oppressive manner. But if the debtor assents to the payment, the reason of the law fails; and whether the consent be given before or after the payment is, as it seems to us, immaterial. Yelv. (Metcalf's ed.) 42, note. We have no doubt, therefore, that the defendant's promise is valid; first, because his ratification of the payment is equivalent to a previous request to pay, and the objection, that the consideration was past, cannot be maintained; and secondly, because the case shows an equitable consideration, which is sufficient to sustain an express promise. Where a man is under a moral obligation to pay a debt, which cannot be enforced by a court of law or equity, yet if he promises to pay he will be bound. As where a man promises to pay a just debt, the recovery of which is barred by the statute of limitations; or if a minor contracts a debt, but not for necessaries, and after he comes of age, promises to pay it; or if a debtor promises the assignee of a chose in action to pay him. In all such cases, and many others, the party will be bound by his promise, although before the promise the other party had no remedy either in law or equity. Hawkes v. Saunders, Cowper, 290. There is another ground on which this action might be maintained, if there had been no express promise. The payment of the mortgage debt by the plaintiff was not merely voluntary. He was bound to pay the debt in order to secure his equitable interest in the estate. He was placed in this situation by the neglect of the defendant to pay the debt due to his creditor, who levied his execution on the equity of redemption. Under these circumstances no previous request to pay the debt, or subsequent ratification by the defendant, was required. Child v. Morley, 8 T. R. 610. It was contended by the defendant's counsel, at the trial, that the operation of the payment of the mortgage was sufficient, under the circumstances, to constitute the plaintiff the assignee thereof, and to convey to him all the right of the original mortgagee. This right, we think, is sustained by the Revised Stat. c. 73, §§ 34, 35. But it by no means follows that the plaintiff has not a double remedy, as the mortgagee had. If the payment operated as an equitable assignment of the mortgage, it would have the same operation as to the note. If the plaintiff had a right to hold the mortgaged estate until the defendant paid the debt, then most clearly the defendant's promise is binding and obligatory, although the plaintiff had another security. Default entered.1 (y) Reviving agreement barred by some rule of law. DUSENBURY, Executor, v. HOYT. 53 NEW YORK, 521.-1873. The action was upon a promissory note. The defendant pleaded his discharge in bankruptcy. Upon the trial, after proof of the discharge, plaintiff offered to prove subsequent promise of the defendant to pay the note. Defendant objected upon the ground that the action was upon the note, not upon the new promise. The court sustained the objection, and directed a verdict for defendant, which was rendered accordingly. Plaintiff appeals. ANDREWS, J. The 34th section of the bankrupt law declares that a discharge in bankruptcy releases the bankrupt from all debts provable under the act, and that it may be pleaded as a full and complete bar to all suits brought thereon. The legal obligation of the bankrupt is by force of positive law discharged, and the remedy of the creditor existing at the time the discharge was granted to recover his debt by suit is barred. But the debt is not paid by the discharge. The moral obligation of the bankrupt to pay it remains. It is due in conscience, although discharged in law, and this moral obligation, uniting with a subsequent promise by the bankrupt to pay the debt, 1 Accord: Doty v. Wilson, 14 Johns. 378. gives a right of action. It was held in Shippy v. Henderson (14 J. R. 178) that it was proper for the plaintiff, when the bankrupt had promised to pay the debt after his discharge, to bring his action upon the original demand, and to reply the new promise in avoidance of the discharge set out in the plea. The court, following the English authorities, said that the replication of the new promise was not a departure from the declaration, but supported it by removing the bar interposed by the plea, and that in point of pleading it was like the cases where the defense of infancy or the statute of limitations was relied upon. The case of Shippy v. Henderson was followed in subsequent cases, and the doctrine declared in it became, prior to the Code, the settled law. McNair v. Gilbert, 3 Wend. 344; Wait v. Morris, 6 Id. 394; Fitzgerald v. Alexander, 19 Id. 402. The question whether the new promise is the real cause of action, and the discharged debt the consideration which supports it, or whether the new promise operates as a waiver by the bankrupt of the defense which the discharge gives him against the original demand, has occasioned much diversity of judicial opinion. The former view was held by Marcy, J., in Depuy v. Swart (3 Wend. 139), and is probably the one best supported by authority. But, after as before the decision in that case, the court held that the original demand might be treated as the cause of action, and for the purpose of the remedy, the decree in bankruptcy was regarded as a discharge of the debt sub modo only, and the new promise as a waiver of the bar to the recovery of the debt created by the discharge. We are of opinion that the rule of pleading, so well settled and so long established, should be adhered to. The original debt may still be considered the cause of action for the purpose of the remedy. The objection that, as no replication is now required, the pleadings will not disclose the new promise, is equally applicable where a new promise is relied upon to avoid the defense of infancy or the statute of limitations, and in these cases the plaintiff may now, as before the Code, declare upon the original demand. Esselstyn v. Weeks, 12 N. Y. 635. The offer of the plaintiff to prove an unconditional promise by the defendant, after his discharge, to pay the debt, was improp P |