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one effected by the voluntary assent of the creditors. The adjudications are to the effect that a debt which has been extinguished by a voluntary agreement of the debtor and creditor will not support a new promise and that one discharged by operation of law will support one. The proceeding resulting in the discharge of a debtor from liability, based on a composition after bankruptcy proceedings are instituted, is not in its nature such a voluntary act of the creditor as is considered in law as being a voluntary assent of the creditor to the satisfaction of the debt.

In Matter of Merrimam's Estate, 44 Conn. 587, Fed. Cas. No. 9,479, the court stated the principal question as being "whether an express promise made by a bankrupt to a creditor to pay the amount of his debt is valid, such creditor having theretofore expressly assented to a composition made and confirmed under the seventeenth section of the amended Bankruptcy Act of June 22, 1874," and carried into effect and held that the promise was valid. It enunciated that an express promise to pay a debt, which had been theretofore discharged by operation of law, was valid. The adequate consideration was the moral obligaton to keep the original promise; this rule does not apply to a composition inter partes which derives its validity merely from the will of the parties; and if a debt is legally discharged by the voluntary act of the party, there remains no obligation which can be deemed a consideration for a promise; a discharge by performance of the terms of a bankruptcy composition is a discharge by operation of law; the composition is as to the assenting creditor both a voluntary act and an act of the law, but its efficiency is derived from the compulsory power of the law. * * *

The case of Taylor v. Skiles, 113 Tenn. 288, 81 S. W. 1258, conflicts with the decisions cited and others of like import. Therein it is stated: "It is very generally held that, in the case of a discharge of a debt under insolvent or bankrupt laws, a subsequent promise to pay by the insolvent or bankrupt will revive the original debt and make it enforceable at law. But it is otherwise where the creditor comes to terms with his debtor under a valid composition, and agrees to, and does, accept a part of his debt for the whole. When this is done, the debt is extinguished. The parties having met on common ground, and agreed on terms of settlement which have been carried out, there is no longer even a moral obligation resting upon the debtor as to the balance of the original liability. So that a new promise after composition is without consideration, and will not afford a cause of action.

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It is to be noted that the decisions thus cited sustain the proposition that a promise to pay a debt voluntarily discharged is not binding for want of a legal consideration, but do not hold that a discharge in bankruptcy through a composition is a voluntary release or extinguishment of the debt. * * *The judgment should be affirmed.

KEENER y. CRULL.

(Supreme Court of Illinois, 1857. 19 Ill. 189.)

This is an agreed case, taken by appeal from Scott, from a judgment rendered in the circuit court of said county, at the October term, A. D. 1857, which judgment was rendered upon the following state of facts:

Sarah Crull, wife of George Crull, while a feme sole, in the lifetime of said John Peniger, deceased, rendered services for said Peniger, which claim for services became barred by lapse of time, and it was insisted by the appellees in the court below, that the case was taken out of the statute of limitations by a subsequent promise, and they relied upon the testimony of George Longwith, which testimony is as follows: That in the month of November, 1850, he (the witness) had a conversation with the said Peniger; had been old neighbors, and they had a long conversation together, at Peniger's; Peniger then told witness that he had agreed to give his daughter, the said Sarah, two hundred dollars a year for her work, and he had not paid her yet, and that she had gone to Ohio. Appellant insists that said testimony of George Longwith is not sufficient to take the case out of the statute of limitations.

It is stipulated, in this case, that said Sarah Crull commenced services in A. D. 1833, she being then of age, and continued in service until December, A. D. 1838.

SKINNER, J. This was an agreed case. The plaintiffs sue, as husband and wife, for a debt due the wife when sole. The case shows that the wife, while sole and of full age, remained with her father, and worked in the family from 1833 to 1838; that, in. 1850, the father, who is the defendant's testator, in a conversation with one Longwith, said "that he had agreed to give his daughter (the now feme covert plaintiff with her husband), two hundred dollars per year for her work, and he had not paid her yet, and she had gone to Ohio." The debt, if one existed, was barred by the statute, and the question is, whether, by reason of the admissions of her father in 1850, the plaintiffs are entitled to recover against his executor?

The great diversity of construction of like statutes, both in the courts of this country and of England, demands in this case the application of such rule as is consistent with our own decisions, and the current of modern adjudications.

The statute bars the action, and all remedy for recovery of the debt; and, when the bar is complete, the statute being interposed in defense, no action for the recovery of the debt can be maintained.

The debt, however, is not annihilated, and remains the same as before, excepting that all remedy for enforcement of the obligation is gone. The debt constituting an unquestioned moral obligation, is, however, a good consideration to support a promise to perform that obligation; and a new promise, based upon this moral obligation, is binding upon the debtor in avoidance of the bar of the statute.

The new promise may arise out of such facts as identify the debt, the subject of the promise, with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it, at the time acted upon and acceded to by the creditor, the promisee.

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Like any other promise, having legal force and sanction, it must be made to the party seeking its benefits, or to some one authorized to act for him. A promise to a stranger is insufficient to establish a promise to the plaintiff or the party whom he represents.

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Were this a new question, we should hold that the action could alone be brought upon the new promise. But the current of authority and long usage sanction the practice of declaring upon the original cause of action, and of replying the new promise in avoidance of the

statute of limitation; and we do not feel at liberty to disturb a rule so well settled.

Tested by the rules stated, the plaintiffs cannot recover. The language of the defendant's testator was used to a stranger having no concern in the matter, or right to act for the party in interest, the amount of the debt was not named or in any manner indicated, nor was there any language unequivocally importing a present intention or undertaking to pay.

Judgment [for plaintiff] reversed.

BANK OF CARROLLTON, MISS., v. LATTING.

(Supreme Court of Oklahoma, 1913. 37 Okl. 8, 130 Pac. 144,
44 L. R. A. [N. S.] 481.)

Action by Bank of Carrollton, Miss., against R. G. Latting, Jr. Judgment for defendant, and plaintiff brings error.

SHARP, C. On May 17, 1906, the Carrollton Cotton Oil Company, a corporation, engaged in the manufacture of cotton seed products at Carrollton, Miss., was overdrawn in its account with the plaintiff, the Bank of Carrollton. On said day said milling company executed to said bank its demand note for $948.86; that being the amount of its overdraft. This note was signed, "The Carrollton Cotton Oil Co., R. G. Latting, Jr., Sec. & Mgr.," by Mr. Latting, and on the day of its execution was delivered to the bank. Latting was at the time a stockholder in the mill company, and was also its secretary and manager. Some 10 days after the note was executed and delivered to the bank's cashier, at the cashier's request, Mr. Latting signed the note individually. At the same time it appears that Latting told the cashier of certain collaterals owned by the mill company that he would put up as collateral security for the company's note. This, however, was not requested by the bank, but was volunteered by Latting acting for the mill company. These collaterals consisted of some accounts, and two bills of lading for two car loads of cotton seed, issued to the mill company by the Southern Railway Company. The giving of the note took up the mill company's overdraft. This, it appears, was all the bank at the time required in the way of a settlement of the mill company's indebtedness. As testified to by Mr. Latting: "The cashier of the bank. called my attention to the fact that the mill had overdrawn some $900 or more, and asked me to close it up with a note, which I did.”

The transaction between the principal, the mill company, and the creditor, the bank, upon the execution and delivery of the note, thereupon became an executed one, and apparently the bank was satisfied with the manner in which the transaction was closed. It had extended credit to the mill company by permitting it to overdraw its account, and accepted its demand note in settlement of the overdraft. It does not appear that, at the time of the execution and delivery of the note, any request for security in any form was made. The subsequent undertaking of the defendant, Latting, was therefore a collateral one. The indebtedness was that of the mill company. There must, of legal necessity, be a sufficient consideration in order to render valid the contract of suretyship or guaranty. This consideration is usually either of benefit to the principal or surety, or of detriment to the creditor. But where the consideration between the principal and the creditor has

passed and become executed before the contract of the surety or guaranty is made, and such contract was no part of the inducement to the creation of the original debt, such consideration is not sufficient to sustain such contract. The rule is a very general one, and authorities in support thereof are manifold.

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It is insisted, however, by counsel that the transaction of May 17th, together with that which subsequently took place when the note was signed by Latting, constituted a single transaction, and was therefore not complete until the date of the latter occurrence. This contention finds no support in the evidence. That the mill company complied fully with the bank's demand on the day that the note was given is unchallenged. There was no request or agreement on that date that Latting should personally indorse the note, or that the mill company should deposit collateral. It is therefore unnecessary for us to give further consideration to this contention.

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It not appearing that there was any consideration for the defendant's contract of suretyship or guaranty, the judgment of the trial court should be affirmed. * * *

PER CURIAM. Adopted in whole.

SECTION 7.-SEALED INSTRUMENTS

As we have seen, promises are enforced if they are supported by consideration. It is possible for the law to select some other test for the enforceability of a promise; that is, the requisite of consideration could be entirely dispensed with. But, unless the law adopts the policy of enforcing all promises, which it has never done, something must take its place. An intention to make a gift coupled with delivery will transfer rights in property to the donee. Also a gratuitous declaration of trust, unaccompanied by delivery, imposes obligations upon the trustee and confers rights upon the beneficiary. The law imposes duties even in the absence of a promise to assume them, as in the case where one would be unjustly enriched if he were allowed to keep what he received, without paying for it. Moreover, we are under legal duties, not depending upon a voluntary assumption of them, not to commit a trespass or wrong to another's person, to his property, to his reputation, or to his freedom to engage in all lawful social or business activities. Legal obligations arise in various ways. Moreover, legal obligations may arise out of promises for more than one reason. The law could say that all promises in writing shall be enforceable, merely because they are in writing, but it does not say so. The law could say that all promises, either oral or in writing, made in the presence of two witnesses, shall be enforceable. A rule very similar to this exists in the law of wills. A promise to make a gift, when made in conformity with the statute relating to wills, creates rights in the devisee or legatee upon the death of the testator. The usual requirement is that the will must be in writing and signed by the testator and by two or more witnesses who signed in his pres

ence. Wills of personal property are, in some states, valid although oral, if made in the presence of the requisite number of witnesses. The law could provide that promises made in open court, or before some public officer, or filed in some public office should thereby be enforceable, and there are situations where this is so. Suppose that one makes a promise to a judge in the course of a trial, and deliberately breaks it; the breach, under some circumstances, may constitute contempt of court, punishable by fine or imprisonment, although the promise was made without consideration. The sworn statements of witnesses on the witness stand, are not promises, in the generally recognized sense; yet if they are not true, the person making them is guilty of the crime of perjury. Statements sworn to before notaries public and other officers are of like nature. In the case of deeds and mortgages, there must be an act of delivery before the rights and duties therein created become operative. Moreover, the law prescribes, generally, that, unless these instruments are recorded in the office of some public official, third parties have the right to deal with the parties to the deed or mortgage just as if the deed or mortgage had never existed, provided such third parties have no actual knowledge of the existence of such instrument.

The above statement was made largely for the purpose of introducing a comment concerning sealed instruments. The point is, that legal rights and duties may come into existence, either (1) because the lawmaking authority has provided that they should exist, or (2) because the parties have voluntarily created them. But, realizing that people will appear to assume duties and to create rights under many circumstances where, in the long run, it would be more just to condone the non-performance of the promise, the law, of necessity, has had to select some requisite, in addition to the promise, to render it enforceable. Consideration is one test. Mankind, at all times, has attached more importance to an act attended by some formality than to informal acts. The above illustrations show how various these formalities may be, and those stated, by no means, exhaust the possibilities.

At a very early day, it became the law that, if a person made a promise in writing, and in addition affixed his seal, the promise was enforceable, no consideration being necessary. In fact, for a long time, the sealed contract was the only kind of executory contract. The law of simple contracts, based upon consideration had not yet developed. The seal originally was an impression made in wax, adhering to the instrument. Modern statutes have, for the most part, done away with this form of seal. To-day, in most states, a seal may consist of the word "seal” or some scroll or marks which sufficiently indicate that the party signing intended to execute a formal contract. The statutes of most states have changed the legal effect of sealed instruments from what it was at the common law. In some states, it is provided that the presence of a seal on a contract shall have no effect; that is, the rules of law applicable to

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